A BILL to amend and reenact section one, article three,
chapter sixty-four of the code of West Virginia,
one thousand nine hundred thirty-one, as amended,
relating to authorizing the division of
environmental protection to promulgate a
legislative rule relating to the prevention and control of emissions from municipal solid waste
landfills.

Be it enacted by the Legislature of West Virginia:

That section one, article three, chapter sixty-four
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, to read
as follows:

§64-3-1. Division of environmental protection.
(a) The legislative rule filed in the state register
on the thirtieth day of August, one thousand nine hundred
ninety-six, authorized under the authority of section
six, article eighteen, chapter twenty-two of this code,
relating to the division of environmental protection
(hazardous waste management, 33 CSR 20), is authorized.
(b) The legislative rule filed in the state register
on the twenty-ninth day of August, one thousand nine
hundred ninety-six, authorized under the authority of
section four, article five, chapter twenty-two of this
code, relating to the division of environmental
protection (standards of performance for new stationary sources pursuant to 40 CFR Part 60, 45 CSR 16), is
authorized.
(c) The legislative rule filed in the state register
on the twenty-ninth day of August, one thousand nine
hundred ninety-six, authorized under the authority of
section four, article five, chapter twenty-two of this
code, relating to the division of environmental
protection (emission standards for hazardous air
pollutants pursuant to 40 CFR Part 63, 45 CSR 34), is
authorized.
(d) The legislative rule filed in the state register
on the twenty-eighth day of August, one thousand nine
hundred ninety-six, authorized under the authority of
section six, article seventeen, chapter twenty-two of
this code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-second day of October, one
thousand nine hundred ninety-six, relating to the
division of environmental protection (underground storage
tank insurance trust fund, 33 CSR 32), is authorized.
(e) The legislative rule filed in the state register on the twenty-ninth day of August, one thousand nine
hundred ninety-six, authorized under the authority of
section three, article one, chapter twenty-two of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twentieth day of December, one thousand
nine hundred ninety-six, relating to the division of
environmental protection (WV/NPDES regulations for coal
mining facilities, 47 CSR 30), is authorized.
(f) The legislative rule filed in the state register
on the thirtieth day of August, one thousand nine hundred
ninety-six, authorized under the authority of section
four, article three, chapter twenty-two of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making review
committee and refiled in the state register on the
twenty-first day of February, one thousand nine hundred
ninety-seven, relating to the division of environmental
protection (surface mining and reclamation regulations,
38 CSR 2), is authorized, with the following amendments:
"On page three, subsection 2.4, by striking out the words "Coal seams commonly associated with such minerals
may include, but are not limited to Waynesburg,
Washington, Freeport, Sewickley, Redstone, Pittsburgh,
Kittanning, Elk Lick, Peerless, No. 2 Gas, Upper Eagle,
No. 5 Block and Stockton Lewiston";
On page three, subsection 2.4, line eight, by
striking out the words "these seams are", and inserting
in lieu thereof the words "the seam is";
On page nine, subsection 2.43, line two, after the
word "highwall", by inserting the words "except in
operations where the entire upper horizon above the
lowest coal seam is proposed to be partly or entirely
removed";
On page sixteen, subsection 2.95, line seven after
the "any", by inserting the word "substantial";
On page eighteen, subsection 2.108, line two, after
the word "stream." by adding the following: Examples
include wildlife ponds, settling basins and all ponds and
facilities or structures used for water treatment.;
On page nineteen, subsection 2.120, line three, by
striking the word "or" and inserting in lieu thereof the
word "and";
On page twenty-nine, subsection 3.2.e., after the
word "period" by striking the remainder of the
subdivision 3.2.e.;
On page forty-nine, subsection 3.14.b.7., by
striking the entire paragraph;
On page forty-nine, subsection 3.14.b.8., by
striking the entire paragraph;
On page forty-nine, by renumbering the remaining
paragraphs;
On page fifty-one, subparagraph 3.14.b.14E, line
one, before the word "A", by inserting the words "If
requested by the Director";
On page fifty-one, subsection 3.14.b.15.B., by
striking the entire subparagraph, and inserting in lieu
thereof the following: 3.14.b.15.B. Surface water must
be diverted around or over the material by properly
designed and stabilized diversion channels which have
been designed using the best current technology to
provide protection to the environment or the health,
welfare and safety of the public. The channel shall be
designed and constructed to ensure stability of the
remaining material, control erosion, and minimize water infiltration into the remaining material.;
On page seventy-two, subdivision 3.29.a, line five
after the word "IBR", by inserting the words "or where it
has been demonstrated to the satisfaction of the Director
that limited coal removal on areas immediately adjacent
to the existing permit is the only practical alternative
to recovery of unanticipated reserves or necessary to
enhance reclamation efforts or environmental protection";
On page eighty-six, by inserting a new subsection
3.35 to read as follows: 3.35. All grade measurements
and linear measurements in this rule shall be subject to
a tolerance of two percent (2%). All angles in this rule
shall be measured from the horizontal and shall be
subject to a tolerance of five percent (5%): Provided,
however, this allowable deviation from the approved plan
does not affect storage capacity and/or performance
standards.
On page one hundred eight, subdivision 5.5.c., line
two, after the word "landowner", by striking the
remainder of the paragraph and inserting in lieu thereof
the words "requesting the permanent structures be left
for recreational or wildlife propagation purposes or for any beneficial uses to the landowner";
On page one hundred twelve, subdivision 6.5.a., line
five, after the word "Sunday." by adding the following:
Provided, however, the Director may grant approval of a
request for Sunday blasting if the operator demonstrates
to the satisfaction of the Director that the blasting is
necessary and there has been an opportunity for a public
hearing.;
On page one hundred twenty-six, paragraph 9.2.i.2,
after the word "achieved" by inserting: An alternate
maximum or minimum soil pH may be approved based on the
optimum pH for the revegetation species.;
On page one hundred thirty, line one, paragraph
9.3.h.1., by striking out the paragraph in its entirety,
and inserting in lieu thereof: 9.3.h.1. The minimum
stocking rate of commercial tree species shall be in
accordance with the approved forest management plan
prepared by a registered professional forester. In no
case may the rate be less than four hundred fifty (450)
stems per acre of commercial tree species;
On page one hundred thirty, paragraph 9.3.h.2., by
striking out the paragraph in its entirety, and by renumbering the subsequent paragraphs;
On page one hundred thirty, in renumbered paragraph
9.3.h.2., after the word "than", by striking out the
words "four hundred fifty (450)", and inserting in lieu
thereof "three hundred (300);"On page one hundred
thirty, in renumbered paragraph 9.3.h.2., after the word
"acre", by inserting the words "or the rate specified in
the forest management plan, whichever is greater,";
On page two hundred twenty-two, subdivision 14.11.e,
line 6, by striking out the word "operable" and by
inserting in lieu thereof "such condition that
operations could be resumed within sixty (60) days";
On page two hundred twenty-three, subdivision
14.11.f., line four, by striking out the word
"operative", and by inserting in lieu thereof the words
"such condition that the operations could be resumed
within sixty (60) days";
On page two hundred twenty-three, subdivision
14.11.f., line four, after the word "is", by inserting
the words "protected from unauthorized entry";
On page two hundred thirty-eight, subparagraph
14.15.b.6.A., line five, after the word "exceed", by striking out the words "fifty (50) percent of the total
permit acreage, or four hundred (400) acres, whichever is
less, on operations which consist of at least three
spreads of equipment", and inserting in lieu thereof the
words "five hundred (500) acres on operations which
consist of multiple spreads of equipment";
On page two hundred thirty-nine, subsection
14.15.c., line three, after the word "regraded", by
inserting the words "and stabilized";
On page two hundred thirty-nine, subsection
14.15.c., line four, after the word "plan", by striking
out the "comma" and the remainder of the subparagraph,
and inserting in lieu thereof the words: The following
shall not be included in the calculation of disturbed
area.;
On page two hundred forty, paragraph 14.15.c.2.,
line seven, after the word "benches", by inserting the
words "without regard to like thickness";
On page two hundred forty, paragraph 14.15.c.5, line
two, after the word "graded", by inserting the words
"with material placed in a stable, controlled manner
which will not subsequently be moved".
(g) The legislative rule filed in the state register
on the twenty-ninth day of August, one thousand nine
hundred ninety-six, authorized under the authority of
section ten, article five, chapter twenty-two of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-sixth day of November, one
thousand nine hundred ninety-six, relating to the
division of environmental protection (confidential
information, 45 CSR 31), is authorized.
(h) The legislative rule filed in the state register
on the twenty-ninth day of August, one thousand nine
hundred ninety-six, authorized under the authority of
section four, article five, chapter twenty-two of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the sixteenth day of January, one thousand
nine hundred ninety-seven, relating to the division of
environmental protection (to prevent and control air
pollution from hazardous waste treatment, storage or disposal facilities, 45 CSR 25), is authorized.
(i) The legislative rule filed in the state register
on the fifth day of February, one thousand nine hundred
ninety-seven, authorized under the authority of
section three, article twenty-two, chapter twenty-two of
this code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-fifth day of February, one
thousand nine hundred ninety-seven, relating to the
division of environmental protection (voluntary
remediation and redevelopment, 60 CSR 3), is authorized.
(j) That title sixty, series one of the code of
state rules be amended by deleting the current
interpretative rule for the office of environmental
advocate and inserting in lieu thereof the following
legislative rule, to read as follows:"§61-10-1. General.1.1. Scope. - This legislative rule governs and
controls the appointment and qualifications of the
position of Environmental Advocate within the Division of
Environmental Protection. 1.2. Authority - West Virginia Code §22-1-3, 22-1-
3a, 22-20.1.3. Filing Date - 1.4. Effective Date - July 1, 1997.§61-10-2. Appointment, Salary and Qualifications.2.1. Appointment. - The position of Environmental
Advocate will be a full-time position, will be appointed
by the Director, and will serve at the will and pleasure
of the Director of the Division of Environmental
Protection in accordance with the West Virginia Code §22- 20-1.2.2. Salary. - The salary of the position of
Environmental Advocate will be set by the Director and is
subject to future adjustments at the discretion of the
Director.2.3. Qualifications. - The Director will receive or
solicit applications for the position of Environmental
Advocate from persons having the following minimum
qualifications:2.3.a. A citizen and resident of the State of West
Virginia.2.3.b. A graduate from an accredited college or university with a four-year degree in a field of study
directly related to the qualifications, powers, and
duties of the position as set forth by the director.2.3.c. A minimum of two years full-time or
cumulative experience in work directly related to
environmental protection, or other public service work or
experience which demonstrates the ability to carry out
the powers and duties of the position as set forth by the
director.2.3.d. A working familiarity with some of the legal
requirements and programmatic functions of the Division
of Environmental Protection. 2.3.e. A demonstrated ability to skillfully
verbally and by writing communicate in a public forum.2.3.f. A demonstrated ability to use word
processing software for a computer and other necessary
computer skills as determined by the director.2.3.g. A valid West Virginia driver's license.§61-10-3. Powers and Limitations -
The Environmental Advocate will carry out the duties
of the position as set forth in this rule, and as
prescribed by the Director in accordance with the following:3.1. The Environmental Advocate will be guided in
all actions by the policy statement and the nine purposes
set forth in West Virginia Code §22-1-1 (b). 3.2. The Environmental Advocate may not in any
official capacity represent any person in, or file on
behalf of any person, legal or quasi-legal actions,
either in support of or opposed to the Division of
Environmental Protection without the expressed approval
of the Director, and under supervision of the Division of
Environmental Protection's General Counsel.3.3. The Environmental Advocate may not in any
official capacity organize public campaigns in support
of, or in opposition to official positions taken by the
Division of Environmental Protection on environmental
matters, and will not in any official capacity actively
participate in any such organized campaign."
(k) The director of the division of environmental
protection is hereby authorized to propose for
promulgation an emergency rule to amend a current
legislative rule relating to monitoring of air quality
(to prevent and control particulate air pollution from manufacturing process operation, 45 CSR 7).
(l) The legislative rule filed in the state register
on the eighteenth day of March, one thousand nine hundred
ninety-seven, relating to the division of environmental
protection (yard waste composting, 47 CSR 38E) is
authorized.(m) The legislative rule filed in the state register
on the first day of August, one thousand nine hundred
ninety-seven, authorized under the authority of section
four, article five, chapter twenty-two, of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making review
committee and refiled in the state register on the
seventh day of January, one thousand nine hundred
ninety-eight, relating to the division of environmental
protection (to prevent and control of emissions from
municipal solid waste landfills, 45 CSR 23), is
authorized.

NOTE: The purpose of this bill is to authorize the
Division of Environmental Protection to promulgate a
legislative rule relating to the Prevention and Control
of Emissions From Municipal Solid Waste Landfills.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates
new language that would be added.